Eisen v. Independence Blue Cross ( 2003 )

MONTEMURO, J.

¶ 1 This is an appeal from an order declining to certify as a class in-network providers of chiropractic services, represented by Appellants,¹ who sought relief from allegedly improper policies and practices of Appellee health insurance companies ² with regard to precertification, that is, required prior authorization of payment,³ for provision of purportedly medically necessary care to subscribers. Appellants instituted this action for breach of the contract governing provision of services.

¶ 2 Appellants’ claim rests on the assertion that Appellees have fabricated eight “schemes” designed to deny them reimbursement under the contract; three of these, it is alleged, involved “bundling” and “downcoding” claims; one asserts denial of coverage by unqualified personnel; and four, posit application of certain standards and algorithms “which operate as absolute denial mechanisms or irrebuttable presumptions foreclosing meaningful opportunity for individualized analysis of claims.” (Appellants’ Brief at 10). These allegedly improper practices commenced when pre-certification reviews were conducted by HCX, a company with which Appellees contracted for the purpose of utilization management, and continued when Appel-lees created an in house entity, Patient Care Management, to assume this function.

¶ 3 Pennsylvania Rule of Civil Procedure 1702, which governs class certification requirements, specifies that five criteria be met in establishing the existence of a class: numerosity of class members; commonality of questions of law or fact; typicality of claims or defenses; adequacy of representation so as to protect the interests of the class; and fairness and efficiency. After a hearing and review of the documents filed in this matter, the trial court found that the requirements of typicality and predominant common questions of law and fact were not met, and that as a result, a class action would not provide a fair and efficient means of testing Appellants’ claims. This appeal followed.

¶ 4 We first note that although the policy of this Commonwealth toward certification of class is both liberal and inclined toward maintaining class actions, Debbs v. Chrysler Corp., 810 A.2d 137, 153 (Pa.Super.2002),

a lower court’s order denying class certification will not be disturbed on appeal unless the court neglected to consider the requirements of the rules governing class certification, or unless the court abused its discretion in applying the class certification rules.

Baldassari v. Suburban Cable TV Co., Inc., 808 A.2d 184, 189 (Pa.Super.2002) (citations omitted).

¶ 5 Appellants’ first and second claims challenge the trial court’s findings as to commonality, typicality, and the trial court’s finding that a class action would not be a fair and efficient method of resolving Appellants’ complaints; their third assigns error to the court’s interpretation of two class certification cases that Appellants assert are determinative; and their fourth addresses whether remand is necessary to examine those aspects of class certification, numerosity and representation, not addressed by the trial court. We affirm.

¶ 6 Appellants argue that commonality has been demonstrated because their claims all arise from interpretation of a form contract based on the restrictive policies described above. They rely on our decision in Janicik v. Prudential Ins. Co. of Am., 305 Pa.Super. 120, 451 A.2d 451, 457 (1982), for the propositions that “[c]ommon questions will generally exist if the class members’ legal grievances, arise out of the ‘same practice or course of conduct’ on the part of the class opponent,” and that “[c]laims arising from interpretations of a form contract generally give rise to common questions.” Appellants advance the argument that since the contract was common to all providers, the claims for breach too must, of necessity, be based on facts common to all. However, “the common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all.” Allegheny County Hous. Auth. v. Berry, 338 Pa.Super. 338, 487 A.2d 995, 997 (1985). “If ... each question of disputed fact has a different origin, a different manner of proof and to which there are different defenses, we cannot consider them to be common questions of fact within the meaning of Pa. R.C.P. 1702.” Id.

¶ 7 Here, as Appellants correctly argue, the Provider Agreement is, in fact, a form contract that defines the term “medically necessary.”⁴ The agreement stipulates that coverage be provided to subscribers and/or compensation/reimbursement to providers for the delivery of medically necessary care. In each instance, however, a determination of medical necessity must precede authorization of or payment for services, and is, perforce, based on individual rather than common factors. Although Appellants ostensibly challenge the process by which such decisions are made, precertification must be granted or denied on individual, not common, facts. Indeed, so far from common is the question of what constitutes medical necessity, Appellants conceded that disagreement may exist as to what services a given patient may require. The Complaint specifically “seek[s] relief from [Appellees’] policy and practice of denying medically necessary chiropractic care.” (Appellants’ Complaint at 2). The decision as to what constitutes medical necessity is therefore a precondition to the grant or denial of treatment, and integral to assessment of whether the grant or denial of precertification or reimbursement was proper.

¶ 8 Appellants also fail to calculate the denial of precertification or reimbursement dependent on the breadth of the coverage carried by each individual patient, a variable which, perhaps even more than the determination of medical necessity, affects Appellees’ response to benefit claims. Indeed, the lead plaintiff conceded that the providers’ agreement -with Appellees would be superceded by the subscriber contracts; not only do these differ between insurers, but between different plans offered by the same insurers.

¶ 9 Appellants examine each of the policies/algorithms they identify as designed to prevent authorization of care, explaining how each is inapposite to the question of medical necessity. However, at the point at which each is allegedly applied by Ap-pellees, the decision to be made is whether the proposed treatment qualifies as medically necessary. Appellants would have us ignore this element of the equation.⁵

¶ 10 With regard to the specifics of the challenged policies, Appellees are accused of systematically denying reimbursement for any care billed under two codes representing the highest level of services, a process termed “downcoding.” However, it must be noted that not all Appellees use the codes in question. In addition, Appellants deposed that they rarely, if ever, submitted the codes which are supposedly subject to categorical rejection. Indeed, the lead plaintiff testified that he uses only one code for his patients because it represents the service he provides. This uniformity contradicts one of Appellants’ major contentions: that they are improperly denied reimbursement for some services they are licensed to provide. Thus, although Appellants contend, possibly correctly, that individualized medical conditions are not germane to this particular policy application, the admittedly limited use of the objectionable codes either by Appellants or Appellees argues an a priori lack of commonality which undermines the substance of the issue.

¶ 11 Appellees are alleged to refuse categorically reimbursement to Appellants for services within their scope of practice. This conduct, termed “bundling,” involves the question, not only of whether certain services are reimbursable under a specific plan, but whether those services are or are not related to each other, and thus may be claimed together. Either of these questions is dependent on the individual needs of the patient involved, and thus medical necessity is implicated, adversely affecting commonality. Moreover, as noted above, the details of patient coverage affect what services providers may be paid to supply.

¶ 12 Appellees are accused of systematically denying reimbursement for treatment of patients who require multiple treatments for various related and unrelated medical conditions. The particular breach asserted here is that “even if patients require more than one manipulation on a given day, [Appellees] uniformly refuse[ ] reimbursement for the second treatment.” (Appellants’ Brief at 18). Intrinsic to this claim is a preliminary determination of medical necessity based on the particular needs of a given patient. It cannot be divorced from individual and thus variant facts.

¶ 13 Appellants assert that Appellees consistently refuse to reimburse for every patient presenting with a chronic condition. Here too, the nature of the illness, whether chronic or acute, determines the appropriate, individual treatment response, and is the precursor to treatment decisions.

¶ 14 Appellees are said to have imposed an arbitrary cap on the maximum number of reimbursable patient encounters by applying undisclosed procedures and caps on treatment where less than 50% but more than 65% improvement has been shown. In this connection specifically, Appellants posit the fabrication and utilization guidelines or algorithms designed to function “as absolute denial mechanisms or as irre-buttable presumptions that foreclose any meaningful opportunity for a doctor and patient to receive an individualized determination of medical necessity.” (Id. at 23). However, Appellants’ own testimony was that, in fact, Appellees’ responses were inconsistent, even where the same illness suffered by different patients was involved, and that upon second requests, more visits were sometimes authorized. Such factual variations undermine the claim of commonality.

¶ 15 Finally, Appellants’ argue that decisions regarding medical necessity are made by unqualified persons, namely nurses, relying on the undifferentiated algorithms discussed above. The contract specifies that preapproval for services “will be given by the appropriate Independence staff, under the supervision of a Medical Director.” (Professional Provider Agreement at 1.18). There was testimony, moreover, that the decisions delivered by the nurses could be and were subject to alteration after discussion with a Medical Director. Successful recourse to the discretion of supervisory medical personnel seems to undermine the notion that decisions regarding medical necessity are both uniform and are inevitably made by unqualified employees.

¶ 16 This Court has held that “[w]hile the existence of individual questions of fact is not necessarily fatal [to class certification], it is essential that there be a 'predominance of common issues, shared by all class members, which can be justly resolved in a single proceeding.” Weismer v. Beech-Nut Nutrition Corp., 419 Pa.Super. 403, 615 A.2d 428, 431 (1992). A review of Appellants’ claims demonstrates that class certification could not have been granted given the absence of predominantly common questions of law and fact. First, the variation on patient coverage under the subscriber contract dictates the amount and type of services to be reimbursed. Thereafter, variations in service are attributable to whether the proposed treatments were considered medically necessary in a given case. Even assuming that medical necessity was not a factor, evidence of significant variations in preliminary precertification decisions, recertification decisions, and decisions after appeal combine .to vitiate any claim of homogeneity.

- ¶ 17 Appellants insist that “the Trial Court’s ‘individualized medical necessity’ analysis confused elements of proof required to establish class certification with the elements of proof necessary for Doctors to establish the merits of the case.” (Appellants’ Brief at 32) (emphasis original). In so doing, they rely on Baldas-sari, supra. There, as Appellants correctly report, “cable TV subscribers brought a class action challenging the company’s $2 late fee as, inter alia, breach of contract.” (Appellants’ Brief at 32). This Court found that the trial court had improperly denied class certification based on the reasonableness of the late fee, overlooking the fact that the same fee had been applied uniformly to the proposed class. However, because the evidence clearly demonstrates that uniform application of the alleged “schemes” is absent here, Bal-dassari is inapt.

¶ 18 Appellants also assert that the trial court focused its attention on individualized damages, not the allegedly uniform cause of those damages. In support, they rely on this Court’s decision in Cambanis v. Nationwide Ins. Co., 348 Pa.Super. 41, 501 A.2d 635 (1985). There we held that varying damages claims do not preclude a class action, since the claim was a common one: the denial of no-fault work loss benefits to estates of retired persons who have lost social security payments because of a fatal accident. Id. at 689. Here, the variations in coverage and insurer response do not result in uniform responses.

¶ 19 A showing of typicality presents much the same sort of difficulty, as it too demands an underlying identity of facts. To meet this requirement, “a plaintiff must demonstrate that ‘the claims or defenses of the representative parties are typical of the claims or defenses of the class.’ ” Debbs, supra at 161 (quoting Pa. R.C.P. 1702). Here, as already noted, so far from wholesale denial of benefits, on occasion an appeal from the rejection of a claim resulted in the approval of further benefits, and for different patients, different responses were forthcoming. Thus, it was unclear that the named representatives were continually, or even almost always, denied reimbursement for medically necessary chiropractic services as a result of Appellees’ allegedly improper practices. Moreover, because there was no basic commonality of facts and legal claims, given the diversity of patient coverage and thereafter the medical necessity determinations, a class action would not be a fair and efficient means of resolving the issues; no single proceeding could encompass the many permutations of insurer reaction to benefit claims.

¶ 20 In ruling on the commonality issue, the trial court distinguished Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 386, 431 A.2d 883 (1981), and D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 500 A.2d 1137 (1985) (D’Amelio I). In both cases, the inquiry related to the fairness of the insurance companies’ conduct in denying benefits retroactively where medical necessity had previously been decided in favor of granting payment and treatment had already been rendered. The trial court herein concluded that because Appellants’ claims related to Appel-lees’ prospective behavior only, Sharkus and D’Amelio were not germane.

¶21 Appellants argue that there is no difference between prospective and retroactive denial of claims, because there are shared elements of process involved. First, however, both of the cited cases concern a challenge by consumers to the review process as a whole; individual determinations of medical necessity were not at issue.⁶ Here, as the trial court points out, “medical necessity is the threshold issue in order to determine whether or not [Appellants] breached ... the provider agreement.” (Trial Ct. Op. at 21). Appellants’ Complaint states that denial of precertification or recertification can be demonstrated by the existence of predetermined protocols. However, only by an examination of the application of such protocols in each case can the assessment be made of whether medical necessity was ignored or overlooked. Thus, Appellants’ comparison between their claims and those in Sharkus and D’Amelio I is inapt as this Court’s explanation of the principle involved in those cases makes clear:

Like Sharkus, [D Amelio I ] seeks not to prove that plaintiffs hospitalizations were, in fact, medically necessary. Instead, like Sharkus, plaintiff in [D Ame-lio J] seeks a legal determination that: 1) Blue Cross subscribers may not be held liable for the costs of hospitalization retroactively denied by Blue Cross on the ground they were medically unnecessary; and 2), where Blue Cross disagrees with the determination by the hospital that hospitalization was medically necessary, a solution to that problem must be reached by Blue Cross and the hospital.

DAmélio I, supra at 1143. (footnote omitted).

¶ 22 The thrust of the inquiry in these cases was fairness because subscribers were left without recourse. Such is not the situation herein, both because Appel-lees’ decisions were not immutable and because the precertification clause holds harmless any' subscriber treated without preapproval of services. Thus, the trial court correctly distinguished these matters from the instant case.

¶ 23 The Dissenting Opinion defines “the real issue” as “whether the insurance companies methodically and arbitrarily denied claims.” (Dissenting Opinion at 14). If indeed a protocol exists to deny such authorization, the proofs must be of consistent, arbitrary refusals. The proofs Appellants have offered fail to sustain their claim since no blanket denial of authorization for services has been shown. At worst, according to their own testimony, some of their requests are sometimes denied.

¶ 24 Authorization protocols, without more, are not assumed to be arbitrary since the existence of protocols of some description for processing requests for service authorization from insurance companies is neither surprising nor inherently suspect. Unfair application of these protocols requires more than speculation, however, and is difficult of proof. The difficulty has not been overcome by Appellants herein.

¶ 25 Because we find no error in the trial court’s determination that three of the five elements necessary for class certification have not been met, no remand for further findings is necessary.⁷

¶ 26 Order affirmed.

¶ 27 KLEIN, J. files a Dissenting Opinion.

1 . Class certification was also sought for Ap-pellees' subscribers who had contracted to receive Appellants’ chiropractic services. Certain claims not at issue in this appeal were sustained for the subscribers.

2 . Independence Blue Cross is the lead Appellant of which all the remaining Appellants are wholly owned subsidiaries.

3 . The Professional Provider Agreement defines precertification as follows:

1.18 Prior Authorization/Preapproval. The approval which the Primary Care Physician, referred specialist or participating hospital must obtain from Independence to confirm Independence coverage for certain Covered Services as specified in the applicable benefit program Requirements. Such approval must be obtained prior to providing Beneficiaries with Covered Services or Referrals. Approval will be given by the appropriate Independence staff, under the supervision of a Medical Director. Approval is not a guarantee of payment if the Beneficiary is subsequently found ineligible. If the Participating Provider or Participating hospital is required to obtain Preappro-val, and provides Covered Services or Referrals without obtaining such Preapproval, neither the Beneficiary nor Independence will be responsible for payment.

4 . The Provider Agreement states:

1.13 Medically Necessary or Medical Necessity. The requirement that Covered Services or medical supplies are needed, in the opinion of: (a) the Primary Care Physician or the referred specialist, as applicable, consistent with Independence policies, coverage and utilization guidelines; and (b) Independence, in order to diagnose and/or treat a Member’s illness or injury, as applicable, and:

A. are provided in accordance with accepted standards of American medical practice;

B. are essential to improve the Beneficiary's net health outcome and may be as .beneficial as any established alternatives;

C. are as cost-effective as any established alternative; and

D. are not solely for the Beneficiary’s convenience, or the convenience of the Beneficiary's family or health care provider.

5 . Moreover, since, obviously, some treatment is provided to some patients, categorical denial is not involved here.

6 . The Dissent asserts its inability to "see how medical necessity could not be an issue in Sharkus and D’Amelio I and yet be a question here.” (Dissenting Opinion at 10). In both those cases a determination of medical necessity for hospitalization had been made and services rendered. Payment was then denied, either partially or wholly. In Sharkus our Supreme Court noted that the determination that there was not medical necessity for the hospitalization was not disputed. Id. at 888. In D’Amelio I we also found that the objective was not to prove that the hospitalizations were medically necessary. Id. at 1143. Here, however, the denial of medical necessity is inseparable from the claim of unfairness: authorization for service is based on a showing of medical necessity; a consistent showing must therefore be made that authorization for treatment has been and is being denied in cases where medical necessity can be demonstrated. Absent such a showing, unfairness in process of the sort alleged by Appellants cannot be proven.

7 . Appellants posit In re Managed Care Litig., 209 F.R.D. 678 (S.D.Fla.2002), as an instance in which providers were granted class status in an action against health insurers. Even were a Federal District Court case controlling authority, and it is not, Efford v. Jockey Club, 796 A.2d 370 (Pa.Super.2002), we would find that case distinguishable; class certification was granted under the Racketeering Influenced and Corrupt Organizations Act (RICO), and involved plaintiffldoctors who had already provided services. Neither denial of precertification nor the determination of medical necessity was at issue.